International Refugee Assistance Project et al v. Trump et al

Filing 208

MOTION for Leave to File :John Doe #4 and John Doe #5 to Proceed Pseudonymously and for Waiver of Local Rule 102.2(a) as to the Named Individual Plaintiffs by HIAS, Inc., International Refugee Assistance Project, Jane Doe # 2, John Does 1 & 3, Muhammed Meteab, Middle East Studies Association of North America, Inc. (Attachments: # 1 Text of Proposed Order)(Espiritu, Nicholas)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

INTERNATIONAL REFUGEE
ASSISTANCE PROJECT, et al.,
Civil Action No.: 8:17-CV-00361-TDC
Plaintiffs,
v.
DONALD TRUMP, et al.,
Defendants.

PLAINTIFFS’ MOTION FOR LEAVE
FOR JOHN DOE #4 AND JOHN DOE #5
TO PROCEED PSEUDONYMOUSLY
AND FOR WAIVER OF LOCAL RULE
102.2(a) AS TO THE NAMED
INDIVIDUAL PLAINTIFFS

As the Court is aware, Plaintiffs recently filed a Second Amended Complaint to add
allegations and claims regarding the proclamation President Trump signed on September 24, 2017,
entitled, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the
United States by Terrorists or Other Public-Safety Threats” (hereinafter, “EO-3”). See SAC, Dkt.
No. 203. The Second Amended Complaint also adds seven individual Plaintiffs to the case: John
Doe #4, John Doe #5, Mohamad Mashta, Grannaz Amirjamshidi, Fakhri Ziaolhagh, Shapour
Shirani, and Afasaneh Khazaeli. In this motion, Plaintiffs respectfully request leave for John Does
#4 and #5 to proceed pseudonymously, and for new individual Plaintiffs proceeding under their
real names to be relieved of the obligation under Local Rule 102.2(a) to include their home
addresses in the Second Amended Complaint.
Plaintiffs’ counsel has consulted with counsel for the Defendants, who reported, as to both
requests, as follows: “The Government does not object to Plaintiffs’ requests at this time, but
reserves the right to revisit these issues if circumstances warrant and/or at later stages of the
proceeding.”
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I.

Waiver of Local Rule 102.2(a)’s Obligation to Publish Home Addresses

Local Rule 102.2(a) requires parties to provide their addresses in the first pleading in which
they appear, and therefore requires individual Plaintiffs Mohamad Mashta, Grannaz Amirjamshidi,
Fakhri Ziaolhagh, Shapour Shirani and Afasaneh Khazaeli to list their home addresses in the
Second Amended Complaint.
The new named individual Plaintiffs wish to be relieved of this obligation in order to protect
their privacy and to avoid harassment. At least one named individual Plaintiff whose address was
published in a prior complaint was harassed via telephone for participating in this case. His
family’s phone number, which they ultimately had to change to end the harassment, was uncovered
through the address provided in the complaint. In light of this experience, as well as many of the
considerations relevant to the request of John Does #4 and #5 to proceed anonymously (discussed
in more detail below), the new named individual Plaintiffs respectfully request that the Court waive
this requirement of Local Rule 102.2(a).
II.

Leave for John Does #4 and #5 to Proceed Under Pseudonyms

When a party seeks to litigate under a pseudonym, the court must balances that party’s
interest in anonymity against the public’s interest in openness and any prejudice that anonymity
would cause to the opposing party. Doe v. Public Citizen, 749 F.3d 246, 274 (4th Cir. 2014).
Factors relevant to that balancing test include: Whether the party seeks anonymity merely to avoid
annoyance that might attend any litigation, or rather to preserve privacy in a sensitive or highly
personal matter; whether identification poses a risk of retaliatory harm to the requesting party or,
even more critically, to innocent non-parties; the ages of the persons whose privacy interests are
sought to be protected; whether the action is against a governmental or private party; and, relatedly,
the risk of unfairness to the opposing party from allowing an action against it to proceed

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anonymously. James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993) (citations omitted); Int’l
Refugee Assistance Proj. (“IRAP”), No. TDC-17-0361, 2017 WL 818255, at *1 (D. Md. Mar. 1,
2017).
John Does #4 and #5 move for leave to proceed anonymously on grounds very similar to
those on which the Court previously granted motions for other Doe Plaintiffs. Compare Dkt. No.
205-1, J.R. 460-62 (“John Doe #4 Decl.”), and Dkt. No. 205-1, J.R. 446-48 (“John Doe #5 Decl.”),
with IRAP, 2017 WL 818255, and Mem. Order dated Mar. 17, 2017, Dkt. No. 163.
First, John Does #4 and #5 share the same fear as other the Doe Plaintiffs in this litigation—
that revealing their true identities and personal stories, as well as their participation in this lawsuit,
would subject them to harassment from members of the public at large. John Doe #4 Decl. ¶ 12;
John Doe #5 Decl. ¶¶ 7, 9. John Doe #4, moreover, fears that his participation in this case could
lead to the persecution of his wife, who is a national of and still lives in Iran. John Doe #4 Decl.
¶ 11. These risks of retaliation, physical harm, or harassment “weighs heavily in favor” of
permitting John Does #4 and #5 to proceed anonymously. IRAP, 2017 WL 818255, at *2.
Second, both men seek to protect “‘privacy in a matter of sensitive and highly personal
nature’” related to their “religious faith and their relatives’ immigration status,” which also weighs
in favor of the use of pseudonyms. Id. (quoting James, 6 F.3d at 238).
Third, this case is against the government. As this Court has explained, “[u]se of
pseudonyms is more likely to be appropriate in cases challenging government activity because
there is both ‘arguably a public interest in a vindication of . . . rights’ and a risk of stigmatization
of the plaintiff, who often represents a minority interest.” Id. at *3 (quoting EW v. N.Y. Blood Ctr.,
213 F.R.D. 108, 111 (E.D.N.Y. 2003) (alteration in original)). Moreover, John Does #4 and #5 do

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not challenge “the conduct of particular government employees,” but rather executive orders
issued by the President, which makes the use of pseudonyms “more likely to be justified.” Id.
Fourth and finally, Defendants do not oppose the motion and “have offered no claim of
prejudice.” Id. at *3.
Granting John Does #4 and #5’s motion will only minimally affect the public’s interest in
open judicial proceedings. John Does #4 and #5 are joining “a pure legal challenge to” EO-2 and
EO-3, and so their role in the litigation will be relatively minor. Id. The presence of now five
organizational plaintiffs and six named individual plaintiffs, moreover, means that “the public
already has significant information about the parties in this case,” further reducing the need for
John Does #4 and #5 to disclose their real names. Id.
In light of the following, Plaintiffs respectfully request that the Court grant John Does #4
and #5 leave to proceed in this matter using pseudonyms.
Respectfully submitted,
/s/ Nicholas Espíritu
Karen C. Tumlin†
Nicholas Espíritu†
Melissa S. Keaney†
Esther Sung†
National Immigration Law Center
3435 Wilshire Boulevard, Suite 1600
Los Angeles, CA 90010
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Justin B. Cox (Bar No. 17550)
National Immigration Law Center
PO Box 170208
Atlanta, GA 30317
Tel: [phone]

Dated: October 6, 2017

Omar C. Jadwat†
Lee Gelernt†
Hina Shamsi†
Hugh Handeyside†
Sarah L. Mehta†
David Hausman††
American Civil Liberties Union
Foundation
125 Broad Street, 18th Floor
New York, NY 10004
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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Fax: [phone]
[e-mail]

Cecillia D. Wang†
Cody H. Wofsy†
Spencer E. Amdur†
American Civil Liberties Union
Foundation
39 Drumm Street
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
David Cole†
Daniel Mach†
Heather L. Weaver†
American Civil Liberties Union
Foundation
915 15th Street NW
Washington, DC 20005
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
David Rocah (Bar No. 27315)
Deborah A. Jeon (Bar No. 06905)
Sonia Kumar (Bar No. 07196)
Nicholas Taichi Steiner (Bar
No.19670)
American Civil Liberties Union
Foundation of Maryland
3600 Clipper Mill Road, Suite 350
Baltimore, MD 21211
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Counsel for Plaintiffs

†Admitted Pro Hac Vice
†† Application for admission Pro Hac Vice pending
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CERTIFICATE OF SERVICE
I hereby certify that on this 6th day of October, 2017, I caused a PDF version of the foregoing
document and any accompanying exhibits to be electronically transmitted to the Clerk of the Court,
using the CM/ECF System for filing and for transmittal of a Notice of Electronic Filing to all
CM/ECF registrants.
Dated: October 6, 2017

Respectfully submitted,
/s/ Nicholas Espíritu